Laws about surrogate advertising

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In our day-to-day life, we are influenced by advertisements in many ways. Be it tea, deodorant, soap, snacks, or cold drinks, we are encouraged to buy products or services through advertisements. We directly or indirectly depend on the ad to purchase products even if we do not need them. These advertisements could be harmful to people. Therefore, the ad should be regularized to prevent any negative impact on our life. The government has banned the direct advertisement of liquor or tobacco products to curb their adverse effect on human life. But what happens if the company cannot advertise or market its product? How will their brand reach the public? These companies use Surrogate advertisements to promote their product.

This article will discuss a surrogate advertisement, its examples, functions, legality, laws about surrogate advertising, and measures to curb it.

What is surrogate advertising?

“Surrogate” is derived from the word “substitute” by Merriam-Webster. Advertising substitutes or identical products with a brand image to promote another product that belongs to the same brand.
The substitute or surrogate product could be either similar to the original product or totally different from the actual product.
Surrogate advertisement is done when the advertisement of the original product is banned on the mass media.
We can clearly understand surrogate advertisements with the help of illustrative examples given below.

Examples of surrogate advertisement

The liquor and tobacco industries are advertising their products to stay in the limelight through surrogate advertisements. For example, the liquor industry promotes its products under the image of cocktails, soda, mineral water, CDs, cassettes, etc.

For example:

· Imperial Blue is a whiskey brand that sponsors music CDs and cassettes. Bagpiper whiskey brand that surrogates with the image Bagpiper Soda, cassettes, CDs, golf accessories, etc.
· Royal Challenge promotes its whisky brand under Royal Challenge golf accessories.
· Teacher’s whisky brand surrogates under Teacher’s achievement awards.
· Kingfisher beer brand promotes under Kingfisher mineral water, airlines, calendar, etc.

These were the significant examples of surrogate advertisement practised by liquor companies; likewise, the tobacco companies also surrogate their brand to attract customers and make their presence known to the public.

For example:

Mostly tobacco companies use surrogate advertisements in the name of pan masala. Many celebrities endorse these advertisements, which are vital in attracting prospective customers.
Tobacco companies indirectly promote tobacco products in the following manner –

· Red and White bravery awards,
· Wills lifestyle
· Four-square White-water rafting.

The function of surrogate advertisement/ What does surrogate advertisement do?

Liquor and tobacco products are banned from advertisements on Mass Media. Henceforth, these companies have resorted to indirect or surrogate advertising of their products.
The surrogate advertisement comes into the picture when the original product is banned from the advertisement or cannot be promoted. Surrogate ad is done to keep the brands present in the minds of the prospective customers. In addition, the surrogate advertisement helps in brand recall. In the surrogate ad, the company need not advertise the liquor or tobacco product but indirectly under the same brand name.
In the mid- 1990s, the surrogate advertisement strategy was adopted in India after the enactment of the Cable Television Networks (Regulation) Act, 1995, read with Cable Television Rules, 1994. These rules banned the direct advertisement of prohibited products such as liquor, cigarettes, and tobacco. Earlier, the Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975, had made it compulsory to display a public health awareness warning on all the packages and advertisements.
The main aim of banning the direct advertisement of the prohibited products was to curb the influence of advertisement on the people and reduce the effects of these products. Hence, surrogate advertisement by liquor and tobacco companies was the only solution to keep their brand in the public’s mind.

Surrogate advertisement strategies

Ever since the government has imposed a ban on the advertisement of hazardous products like liquor and tobacco, these industries have come up with different strategies to advertise and promote their products indirectly.
Some of these promotion strategies are –

1. Promotion by Association

This kind of promotion creates an impression in the viewer’s mind that brand association brings a specific value.

For example, advertisements stating that the product is for brave people or the person looks relaxed or royal with this product, etc. These advertisements are done by celebrities as it adds value to the product.
For example, Shah Rukh Khan featuring in the Royal Stag advertisement,
Ajay Devgan featuring in the Vimal Elaichi advertisement.

2. Promotion by Extension

Brand extension is a commonly used form of promotion strategy. In brand extension, the company extends its brand to other products, whether or not it is related to them. Brand extension is giving the brand name of the company to other products.

The best example of this strategy is Kingfisher’s airlines, calendar, water, soda, etc., the brand extension of Kingfisher Liquor company.
Manikchand Group’s brand extensions are packaging, roller flour mills, water, wind energy solution, wedding card, flex printing, etc.

3. Promotion through TV Commercials

TV commercials play a significant role in reaching the target audience in large numbers. Therefore, many industries advertise their products on TV and in movies. However, since liquor and tobacco products are banned from promoting or advertising their products, liquor and tobacco product companies indirectly promote or advertise their products.

For example, Rajnigandha, Pan Parag, Kamla Pasand, Manikchand, etc., promotes silver-coated cardamom under the same brand name and packaging they use to sell tobacco products.

4. Promotion through Events and Sponsorship

Another strategy that is very commonly used by liquor and tobacco product companies is event sponsorship, event organization, corporate films, etc. In this strategy, the company sponsors the event and puts its brand name, attracting prospective customers.

For example, Royal Stag owned the IPL team and sponsored the Coke Studio performance.
Vimal sponsored Filmfare awards by the name Vimal Elaichi Filmfare Awards 2021

5. Promotion through Public Service Announcements (PSA)

In pretension of public service announcement, the liquor and tobacco product companies have started to promote their products. These brands bring awareness about the ill effects of tobacco, smoking, not drinking and driving, the legal age to drink alcohol, etc.

For example – public awareness warning issued on the cigarette packets states “smoking causes cancer” or “Smoking kills.”
Public awareness warning was issued on the gutka packets stating, “tobacco causes mouth cancer.”
Public awareness warnings on liquor are “Be safe: Don’t drink and drive” and “Consumption of alcohol is injurious to health.”

Is surrogate advertising legal?

Brand extension means introducing new products with a familiar brand name. And a brand extension is not objectionable or illegal, provided it does not resemble the prohibited consequences. However, there are many instances where the government has criticized surrogate advertisements.

The government has prohibited surrogate advertisement under the Surrogate Advertisements (Prohibition) Bill, 2016. However, this bill was not passed by the government.

The Ministry of Consumer Affairs, Food and Public Distribution has recently put forward a draft of the Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020. These guidelines have introduced restrictions on surrogate advertisements and allowed the advertisement of legitimate brand extensions.

Nevertheless, the court has criticized surrogate advertisements by liquor and tobacco companies in Mahesh Bhatt Vs. Union of India, 2009.
In this case, the court held that the Constitution of India has guaranteed Freedom of Speech and Expression under Article 19(1)(a) which does not include any commercial speech promoting the use of prohibited products.

In United Breweries Vs. Mumbai Grahak Panchayat, 2007, the legality of advertising soda was in question. The appellant was alleged to have been engaged in the practice of misleading, prominently displaying surrogate liquor advertisements on Western Railway trains.
The court held that the catchy slogans such as “ab toh cold drinks out” and “World’s No.3 and India’s No.1” resemble the company’s whisky brand, not soda. It was further observed that the advertised soda was unavailable in the market. Therefore, such an advertisement is an unfair and deceptive trade practice. Thus, the court directed the company to issue the correct advertisements and ordered the removal of all advertisements from Western Railways trains.

What are the laws pertaining to surrogate advertisements?

The government has enacted various laws prohibiting alcohol and tobacco products and their promotion and advertisement. These laws are:

Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 (“COTPA”)

Direct or indirect advertisement of “Tobacco Products” is prohibited under Section 5 of the COTPA. Rule 2 sub-clause (i), (iii) and (iv) of COTPA states that using any brand or name of Tobacco products for promoting, marketing or advertising other products is a form of an ‘indirect advertisement”. Therefore, surrogate advertisement of any product by tobacco companies is an indirect form of advertisement hence, prohibited under Section 5 of COTPA.
This act prohibits advertisement from people engaged in cigarette production, distribution, and supply. It also prohibits people from media who control the system and allows such advertisements. In addition, any person participating in such promotion that directly or indirectly promotes the use of cigarettes or tobacco products will be banned under the COTPA.

Program and Advertising Codes prescribed under the Cable Television Network Rules, 1994

Section 7(2)(viii) prohibits any direct or indirect advertisement and promotion of cigarettes, tobacco products, alcohol, liquor, wine, or any other intoxicants. However, there are few exceptions where the product may be advertised on cable television if the product consists of the brand name or logo which also resembles the brand name or logo of cigarettes, tobacco products, alcohol, liquor, wine or other intoxicants.

These exceptions are as follows –
· The visual representation or storyboard of the product being advertised should not indicate any prohibited products in any manner;
· There should not be any direct or indirect resemblance to the prohibited product in the advertisement;
· There should not be any phrases or nuances which promote any prohibited products in the advertisement;
· Advertisements of other products should not have the same situation typically used for promoting prohibited products.
This Rule has made way for the promotion of prohibited products under the name of brand extensions.

Advertising Standards Council of India (“ASCI”)

ASCI is a non-profit company registered under the Companies Act. It is a voluntary self-regulation council formed to protect against the extensive use of advertisement for promoting prohibited products that are hazardous to the individual or society.

ASCI code section 6 states that –
An advertisement for prohibited products should not bypass or deceive such restrictions showing that it is advertising other products which are not prohibited by law. The code has laid down the criteria that indicate whether there is an indirect advertisement of a prohibited product.

These criteria are as follows –
· Visual representation should not resemble the prohibited products in any form. It should show only the product which is being advertised.
· There should be no direct or indirect resemblance to the prohibited products.
· The advertisement should not have any implications or phrases promoting prohibited products.
Further, the code has also provided guidelines on advertisements by celebrities.

Framework Convention on Tobacco Control (“FCTC”)

FCTC is the world’s first international convention enacted by the World Health Organisation. It came into force in February 2005. Till date, 181 countries have adopted the FCTC. In addition, countries that aim at enacting a strict rule to ban tobacco or tobacco products have adopted this treaty.
Article 13 of FCTC deals with tobacco advertisement, sponsorship, and promotion. Article 13 enables the country to frame strict rules or legislation to ban tobacco, no matter if it is not permitted by its constitution.

The convention allows countries to make rules like –
· Restricting advertisement and event organization and sponsorship by tobacco companies;
· Restricting direct or indirect incentives which promote tobacco consumption;
· Prohibiting or restricting advertisements that hurt viewers.

Measures to curb surrogate advertisement

Advertisement of hazardous and unhealthy products is a significant issue that draws the concern of the government worldwide. Here are a few measures to curb surrogate advertisement –

  •  Amending the existing laws and making them more stringent that clearly ban the surrogate advertisement of prohibited products, including its brand extension.
  • The legislature should ensure proper implementation of national and international laws.
  • Organising awareness campaigns and surveys to make people aware of the negative impact of such advertisements and endorsements.
  • Giving ASCI (Advertising Standards Council of India) more power to take strict actions against any false or misleading advertisement.
  • NGOs have made several campaigns to appeal to the government regarding a comprehensive tobacco product advertisement ban. NGOs such as HRIDAY (Health Related Information Dissemination Amongst Youth) and SHAN (Student Health Action Network) in combat surrogate advertisement should be recognized. NGOs should be given more power to combat surrogate advertisements and create awareness among people.


Surrogate advertisement means the advertisement of banned products in disguise. When a prohibited product is excluded from being advertised on mass media, these companies promote another product with the same brand name so that the brand name reaches people’s minds. Some examples of surrogate advertisements are Vimal Elaichi, McDowell’s Soda, Manikchand Filmfare Awards, etc. Liquor and tobacco products are banned from being advertised on mass media. Therefore, they use surrogate advertisements to reach prospective customers. National and international legislations prohibit surrogate advertisement and have put forward rules and regulations to curb surrogate advertisement.



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